Obama transparency record remains unimpressive

Nearly seven months ago, CPJ published its first in-depth report
on press freedom in the United States, concluding that the Obama
administration's aggressive prosecution of leakers of classified information,
broad surveillance programs, and moves to stem the routine disclosure of
information to the press meant that the president had fallen far short of his
campaign promise to have the most open government in U.S. history. What's
changed since? A quick survey of recent events suggests not much.

That is not to say that things have been dull. National
security reporters have likely been as under-slept in recent months as they
were in the initial period after the Edward Snowden revelations came to light in
June 2013. Media outlets around the world have continued to publish a stream of
scoops based on the leaked documents. The public, Congress, and the Obama
administration have maintained an impassioned debate
on the balance between privacy and security. Despite CPJ's efforts to engage
the administration on some of these issues, the only response received so far
was a White House spokesman's statement
to Politico that "from the day he
took office, the President committed his Administration to work towards
unprecedented openness in government." Two months later, however, in light of
mounting criticism
from the White
House press corps on restrictions to covering official activities, press
secretary Jay Carney told reporters, "We're going to work on finding ways to be
responsive and provide more access."

Yet the events of the last few weeks illustrate how, despite
pledged reforms
to surveillance policies, the administration's professed desire to be more
transparent on national security-related issues remains mostly unrealized. On
April 21, Steven Aftergood, of the Federation of American Scientists' Project
on Government Secrecy, published a blog post pointing
to a previously unnoticed intelligence directive signed in late March. The directive, signed by
Director of National Intelligence James Clapper, bars any communication between
intelligence community officials and a member of the media without express
permission. The prohibition extends to all "intelligence-related information,
including intelligence sources, methods, activities, and judgments," and makes
no distinction between classified and unclassified information.

Shawn Turner, Clapper's spokesman, told
the Guardian that the directive "merely
consolidates at a higher level existing policies within the various
intelligence agencies." Indeed, the policy comes as no surprise in light of revelations
last year by the McClatchy newspapers' Washington bureau of the Insider Threat
Program, which requires all federal employees to help prevent unauthorized
disclosures of information by monitoring the behavior of their colleagues. Yet,
as Aftergood writes, "There is no particular reason to think that routine
interactions between intelligence agency employees and reporters--especially on
unclassified matters--pose any kind of threat to national security, or that
limiting them will offer any benefit. However, the new policy is likely to be
effective in reducing the quality, independence, and critical content of
intelligence-related information that is available to the press and the public."

Journalists covering the 9/11 military tribunals and
detention center at Guantánamo Bay have long faced the restrictions and
challenges of trying to report on highly sensitive cases. Limitations have
included a prohibition
on cameras in the courtroom, a 40-second delay in hearing trial testimony, and
recently, a ban on publishing
the daily tally of detainees on hunger strike, according to news reports. Miami Herald reporter Carol Rosenberg,
who has closely covered the prosecutions, writes that what has always been a
tightly controlled process has recently become even
more restricted. In a video
published in late April, a team of Herald
journalists reported a series of new, inscrutable rules forbidding the filming
of seemingly innocuous scenes like the ferry crossing to the naval base and a
PowerPoint presentation given by public affairs officers (though audio was
allowed). The resulting report is an almost surreal, absurdist montage of giant
lizards, truncated soldier torsos, and disjoined marching feet--with very little
information about conditions at the detention center. The reporters were
particularly frustrated when a Google image search later unearthed far more
identifiable images of soldiers at the base, publicly displayed on official
websites, than they had been allowed to film.

In the latest disruption
to the prosecutions, the defense team alleged in mid-April that the FBI was
investigating the leak of a manifesto written by defendant Khalid Sheikh
Mohammed to Britain's Channel 4 News and The
Huffington Post, which published the document. The FBI denied
that it was looking into the leak, though it confirmed having questioned one of
the defendant's lawyers and the existence of a still mysterious investigation. If
the case does result in a leak prosecution,
it will be only the latest in an unprecedented crackdown on leaks of sensitive
information to the press. National Security reporters interviewed for CPJ's
special report confirmed that the Obama administration's eight prosecutions of
leakers under the Espionage Act--and the government's willingness to go after
journalists for their confidential sources--has severely chilled the flow of
information and curtailed the press's ability to report on what national
security measures the government is carrying out in the public's name. If the
chill on revealing information to the press and to the public has been strong
in Washington, it's been near frigid in tropical Guantánamo--underscoring why a
document that provides a rare insight into the tribunals has been of such
interest.

But one long-fought battle on transparency was won
by journalists when a federal appeals court ruled on April 21 that the
government must comply with a Freedom of Information Act (FOIA) request brought
by two New York Times' reporters and
the American Civil Liberties Union. Reversing an earlier decision, the court
ordered the release of parts of a classified Justice Department memorandum that
provided the administration's legal justification for using drone strikes to
kill U.S. citizens. The message to the administration was significant, Amy
Davidson wrote
in the New Yorker, in that it
signaled "the government gets to have secrets, but it doesn't get to have
secret laws."

The government's reluctance to publish the memo was in line
with the administration's general attitude to FOIA requests, as revealed by an
Associated Press study
in March that found the government refused more requests in 2013 than in
previous years. The aversion to releasing information was shared across
agencies, but national security in particular was cited to "withhold
information a record 8,496 times--a 57 percent increase over a year earlier and
more than double Obama's first year." If the government does decide to disclose
information it is relentless in its efforts to control the message. When F.D.A officials
gave journalists an advance outline of new agency guidelines last month, the
scoop came with a caveat forbidding reporters from
seeking comment from outside sources about the material before the public
release, ensuring that the first round of coverage would only report the
official narrative.

In a climate where government agencies are hardly
forthcoming, it is not surprising that journalists depend on whistleblowers and
leakers for sensitive information. Yet in the past six months, the
administration has sentenced
another leaker to jail (13 months) under the Espionage Act and has refused
to withdraw its subpoena seeking to compel New
York Times journalist James Risen to testify about his source in a separate
leak case. On April 25, the DOJ filed
a brief urging
the Supreme Court not to accept Risen's appeal and argued against the concept
of a reporter's privilege to protect his or her sources. The 1972 Supreme Court
decision in Branzburg v. Hayes (once
described by a Federal Appeals Court judge as "clear as mud"), in the department's
view, "left no doubt that it rejected any first Amendment claim in the
criminal context in order to ensure that society's interest in law enforcement
could be vindicated...Nothing has changed since Branzburg that
would justify revising the longstanding common-law rule that reporters have no
privilege to refuse to provide direct evidence of criminal wrongdoing by
confidential sources." The DOJ referenced its recent revision
of department guidelines on issuing subpoenas to the press and legislative
efforts to enshrine the reporter's privilege, but noted the "uniquely federal
interest in preventing the unlawful disclosure of classified national-defense
information," Politicoreported.
At a conference at The New York Times
in March, Sen. Chuck Schumer asserted that Risen would benefit if a proposed
federal shield law were to be passed, as it would allow him to have his day before
a judge who would evaluate the necessity of his testimony, while the government
would have to prove that the leak had caused "future harm." But many
journalists at the same conference questioned whether a law with an exemption
for national security would ever truly benefit them. In the meantime, Risen's
fate continues to hang in the balance.

Despite the risks to Risen, the government appears to be
upholding, at least for now, Attorney General Holder's lukewarm statement
that he would not prosecute the journalists who published the Snowden documents.
After much anticipation, journalists Glenn Greenwald and Laura Poitras returned
briefly to the U.S. from their self-imposed exiles earlier this month to accept
a journalism award without incident. Their arrival came after months of inflammatory
statements by senior members of the intelligence community like Clapper,
who referred to the journalists as "accomplices," and former NSA chief Gen.
Keith Alexander, who accused the journalists of "selling" the documents and
praised judges in the U.K. who had, in his view, established that "journalists
have no standing when it comes to national security issues."

Rather than scapegoating journalists, the greatest hope for
the intelligence community to regain the public's trust might be to let in a
little sunshine on their own terms. As David Ignatius (a strong defender of the
intelligence community), wrote
in the Washington Post, "In a world where
nothing is reliably secret, which nations will have an advantage? Some might
argue it will be the true police states, such as Russia (Snowden's
absurd refuge) or China, that will be able to muzzle their populations and
protect the crown jewels. But I think the opposite is likely to be true: The
beneficiaries in a no-secrets world will be relatively open societies, such as
the United States, that are slowly developing a culture of accountability and
disclosure for their intelligence agencies, however painful the process may be.
The fewer secrets, the less to protect."

Sara Rafsky is research associate in CPJ's Americas program. A freelance journalist in South America and Southeast Asia, she was awarded a 2008 Fulbright Grant to research photojournalism and the Colombian armed conflict.